Debus v Condor Energy Services Limited (No 2) - [2023] FedCFamC2G 465

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Debus v Condor Energy Services Limited (No 2) [2023] FedCFamC2G 465

File number(s): BRG 137 of 2020

Judgment of: JUDGE EGAN

Date of judgment: 1 June 2023

Catchwords: INDUSTRIAL LAW - COSTS – Where Calderbank Offers made soon after commencement of proceedings – where offers rejected outright – where claim dismissed – whether application for indemnity costs ought to be granted – where appropriate order was for the making of an indemnity costs order from the date of first rejection of the First Calderbank Offer – orders accordingly.

Legislation: Fair Work Act 2009 (Cth) ss. 545 and 570.

Cases cited:
Australian International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879

Australian Workers Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23

Calderbank v Calderbank [1975] 3 All ER 333

Kooee Communications Pty Ltd v Primus

Melbourne Stadiums Ltd v Sautmer [2015] FCAFC 20

Telecommunications Pty Ltd (No 2) [2011] FCAFC 141

The MTGI Trust v Johnston (No 2) [2016] FCAFC 190

Division: Division 2 General Federal Law

Number of paragraphs: 22

Date of last submission/s: 12 May 2023

Date of hearing: 10 May 2023

Place: Brisbane

The Applicant: No appearance

Counsel for the Respondents: Mr T Spence

Solicitor for the Respondents: Saines Legal
ORDERS

BRG 137 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
WAYNE PETER DEBUS

Applicant

AND:
CONDOR ENERGY SERVICES LIMITED

First Respondent

CARTER CHISHOLM DUMONT (CEO)

Second Respondent

order made by:

JUDGE EGAN

DATE OF ORDER:

1 JUNE 2023

THE COURT ORDERS THAT:
1.The Applicant is liable for the payment to the First Respondent of the First and Second Respondent’s costs of and incidental to the proceeding BRG137/2020, on an indemnity basis, as and from 7 July 2020 until 23 December 2022.
2.The Applicant pay the First Respondent’s costs to be agreed, or failing agreement, to be taxed pursuant to the provisions of r. 22.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction

The trial of this matter took place over four days from 30 May 2022 until 1 June 2022, and on 28 September 2022. The applicant had commenced proceedings on 3 March 2020. He sought orders pursuant to s. 545 of the Fair Work Act 2009 (Cth) (‘the Act’) for reinstatement, compensation and an apology.
The Judgment of the Court dismissing the Application was handed down on 23 December 2022.
On 30 January 2023,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FedCFamC2G 465
Decision Date

CaseChat Overview and Summary

Debus v Condor Energy Services Limited (No 2) [2023] FedCFamC2G 465 involved a dispute between Wayne Peter Debus, the applicant, and Condor Energy Services Limited and Carter Chisholm Dumont, the respondents. Debus sought reinstatement, compensation, and an apology for his dismissal, which he claimed was due to his mental health condition. The case was dismissed by the court on 23 December 2022. The respondents subsequently applied for indemnity costs against Debus, arguing that his claim was vexatious and without reasonable cause, and that his rejection of their Calderbank Offers constituted an unreasonable act under s. 570(2)(b) of the Fair Work Act 2009 (Cth).

The court examined the legal principles surrounding Calderbank Offers and the criteria for awarding indemnity costs. It found that Debus's claim was not misconceived but was a contentious one that ultimately failed. The court held that Debus's failure to accept the Calderbank Offers was unreasonable, as he did not consider the consequences of rejecting the offers and proceeding with his claims. The court found that Debus's dismissal was due to his unacceptable behaviour, not his mental health condition, and that he had not provided sufficient evidence to support his claims. The court concluded that the respondents were entitled to indemnity costs from the date of the first Calderbank Offer.

The court ordered that Debus was liable for the respondents' costs of and incidental to the proceeding, on an indemnity basis, from 7 July 2020 until 23 December 2022. The costs were to be agreed upon or, failing agreement, assessed. The court emphasised the importance of considering the consequences of rejecting reasonable offers of compromise and the need for parties to give real consideration to the costs and benefits of prosecuting their claims.

Orders